Chief Justice of India D.Y. Chandrachud on Thursday said a new constitution bench would be set up to examine the petitions by Muslim women to ban polygamy, nikah halal, nikah mutah and nikah misyar on the ground of being unconstitutional. The bench, which included Justices P.S. Narasimha and J.B. Pardiwala, gave the assurance to PIL petitioner Ashwini Upadhyay who is also one of the petitioners for early reconstitution of a new bench. The CJI, without giving any specific time limit, said: “I will consider it at an appropriate stage.” Two of the judges on the earlier bench, Justices Indira Banerjee and Hemant Gupta, retired last year.
On August 30, the bench of Justices Indira Banerjee, Hemant Gupta, Surya Kant, M.M. Sundresh and Sudharshan Dhulia had issued notices to the National Human Rights Commission, National Commission for Women and the National Commission for Minorities and said it would hear the matter again in the second week of October. However, the two judges demitted office and the matter could not be taken up. The matter was referred to the five-judge constitution bench on March 26, 2018, by a three-judge bench in view of the complex issues involved vis-à-vis citizens’ fundamental right to life and personal liberty under Article 21 besides Article 14 (equality) and Articles 25 and 26 relating to religious freedom.
While polygamy refers to the practice of allowing a Muslim man to marry four women during the subsistence of a valid marriage, in nikah halal, a Muslim woman, if she chooses to remarry her former husband, has to first marry another man, consummate the marriage, divorce him and thereafter enter into fresh wedlock with the first husband. Nikah mutah and nikah misyar allow temporary contractual marriages for a period ranging from three days to three months. After the contract period ends, the woman is paid a certain amount of money by the man and the marriage is deemed to have ended. While the main petition has been filed by Upadhyay, Sameera Begum, Nafeesa Begum and Mohsin Bin Hussain Bin Abdad Al Kathiri have filed intervention applications challenging the practices as being unconstitutional.
A five-judge constitution bench had in 2017, by a 3:2 majority, ruled that instant triple talaq was unconstitutional. At that time, some petitioners had raised the issue of polygamy and nikah halal, but the bench had declined to call them unconstitutional, saying the matter could be considered at a later date.
